9911796707
TMI Blog2025 (3) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... xtent that it holds invocation with regards to extended period of limitation for making this demand, as this demand is based by limitation, so no penalty could have been imposed on the appellant.
The impugned order is set aside - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax liability to the tune of Rs.5,98,381/- as detailed in table bellow:- Financial Year Value shown in 26AS Value shown in ST-3 Returns Highest Value among Column No.2, & 3 Rate of Service tax Service Tax Payable 1 2 3 4 5 6 2015-16 1523953 N.A. 1523953 14.5 220973 2016-17 1086405 N.A. 1086405 15 162961 2017-18 (upto June'17) 1429649 N.A. 1429649 15 214447 Total 4040007 0 4040007 598381 2.3 Show cause notice dated 18.09.2020 was issued to the appellant asking them to show cause as to why- "(i) Not paid/ short paid Service Tax amount of Rs.5,98,381/- (inclusive all cess) for the period 2015-16 to 2017-18 (upto June'17) as discussed above, should not be demanded and recovered from them under the proviso to Section 73 (1) of the Finance Act., 1994 read with Section 174 of the Central GST Act, 2017. (ii) Interest on the amount as mentioned at (i) above, should not be charged and recovered under Section 75 of the Finance Act 1994 read with Section 174 of the Central GST Act, 2017 (iii) Penalty should not be imposed under Section 78 of the Finance Act, 1994 read with Section 174 of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST Act, 2017 in reference to failure in providing the documents to the department as discussed above. (v) I refrain the penalty as proposed to impose upon the party under Section 77 (1) (h) of the Finance Act. 1994 read with. Section 174 of the CGST Act, 2017 in reference to non-maintenance of records as prescribed under Rule 5 of the Service Tax Rules, 1994 as discussed above. (vi) I impose the penalty of Rs.10,000/- (Rs. Ten thousand only) for contravention of provisions of Rule 7 of the Service Tax Rules, 1994 under Section 77 (2) of the Act (ibid) read with Section 174 of the CGST Act, 2017 as discussed." 2.5 Aggrieved appellant filed appeal before Commissioner (Appeals) which has been dismissed as per the impugned order referred in para-1 above. 2.6 Hence, this appeal. 3.1 I have heard the Shri S.P. Ojha, Learned Consultant appearing for the appellant and Smt Chitra Srivastava Authorized Representative appearing for the revenue. 3.2 Arguing for the appellant learned consultant submits that- * There was a decision of this Tribunal in the case of M/s Kwality Ice Cream Company Vs CST-Service Tax, Delhi Final Order No.51096 of 2018 dated 23.03.2018 wherein following ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services would amount to replacing the conjunctive 'and' by a disjunctive which is not possible. The counsel for the revenue has not been able to bring on record any material to show the word 'and' should be construed as disjunctive. He has not shown any 'trade practice' which may lead to a necessary inference that service of one kind rendered by one is invariably considered to comprise both. No argument has been advanced before us by him to canvass that the legislature intention is discernible from the scheme of the statute or from any other relevant material. Therefore the word 'and' should be understood in a conjunctive sense. (See Maharaja Sir Pateshwari Prasad Singh v. State of U.P.(1963) 50 ITR 731). In these circumstances if we read the word 'and' as 'or' then it would amount to doing violence to the simple language used by Legislature which cannot be imputed ignorance of English language. In that regard we place reliance on the judgement of Hon'ble the Supreme Court rendered in the case of Inayat Ali Khan v. State of U.P. (1971) 2 SCC 31 (Para 5) and para 6 of the judgement of Hon'ble the Supreme Court rendered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Receipts in relation to Chilling Charges (Rent) as shown in 26AS/ 938710 792001 149850 1880561 2 Receipts in relation to Commission on sale as shown in 26AS/ 585243 294404 0 879647 3 Total receipts as shown in Balance Sheet/ 26AS 1523953 1086405 149850 2760208 4 Less-Deduction of Amount due to damage of editable product of the owner as per B/L 67200 66312 0 133512 5 Actual Receipts inclusive of Service Tax 1456753 1020093 149850 2626696 6 Rate of Service Tax 14.50 15.00 15.00 7 Actual Taxable Value 1272273 887037 130304 2289615 8 Component of Service Tax Amount in Colum No.5 Above 184480 133056 19546 337081 9 Total Receipts inclusive of Service Tax (7+8)-5 1456753 1020093 149850 2626696 Service Tax payable 184480 133056 19546 337081 4.3 From the chart reproduced above, it appears that appellant have received amounts which are much bellow the threshold limit as prescribed under Notification No.33 of 2012, whereby threshold limit of exemption was provided by 10 lakhs in relation to the services exempted from payment of service tax as per Notification No.33 of 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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